The Tennessee Court of Criminal Appeals held that while there was justification for pulling the defendant over, there was no justification for running a dog around the car as a part of a routine traffic stop. The stop was complete, and the defendant was asked for consent and refused. Then the dog was brought out, and it was unconstitutional. The fact it was done “real quickly” is not significant. The defendant’s nervousness that led to a frisk of his person was a product of the unlawfulness of the detention. The conviction is reversed and dismissed. State v. Fly, 2007 Tenn. Crim. App. LEXIS 599 (July 26, 2007):
(1) Accommodation by the duration and scope of the traffic stop
First, we determine whether any independent factual justification for the canine sweep was even constitutionally necessary. The inquiry is whether the use of the drug-sniffing dog was conducted within the reasonable scope and duration of the detention. See generally Caballes.
Officer Carter testified that “[a]fter [he] wrote [the defendant] the citation,” he “asked for consent to search the vehicle.” Consent was denied. The officer then “asked [the defendant] to step out of the vehicle” and told him that he was going to “run [his dog] around the vehicle real quickly.” The officer noticed at this time that the defendant, who had emerged from the car as requested, was moving his hands around in his pockets.
Our review of caselaw involving the use of a drug-sniffing dog on a stopped vehicle yields a rather simple rule: The officer needs no suspicion or cause to “run the dog around” the stopped vehicle if he does it contemporaneously with the legitimate activities associated with the traffic violation. See Caballes, 543 U.S. at 409, 125 S. Ct. at 837-38 (upholding constitutionality of dog sniff conducted by an officer “[w]hile [a second officer] was in the process of writing a warning ticket, [the second officer] walked his dog around [Caballes’] car” and stating that the use of the dog during Caballes’ traffic stop “[did] not implicate legitimate privacy interests” because “the dog sniff was performed on the exterior of [Caballes’] car while he was lawfully seized for a traffic violation”) (emphasis added); England, 19 S.W.3d at 767-68 (upholding constitutionality of a dog sniff while the officer waited for a reply to a records check following a stop for a license-plate-lighting violation, stating that “the canine sweep did not constitute a search under the Fourth Amendment and therefore required neither probable cause nor reasonable suspicion”). If the officer conducts the dog sniff after these activities are–or should have been–completed, see generally Justin Earl Bruce, he is engaging the motorist in an unconstitutional detention, unless an independent basis for suspicion has legitimately evolved. State v. Morelock, 851 S.W.2d 838, 840 (Tenn. Crim. App. 1992) (holding that a constitutional violation occurred when the officer issued the motorist a citation, was denied permission to search the trunk of the motorist’s vehicle, sent for a drug sniffing dog, and used the dog to detect drugs in the trunk).
Because Officer Carter had already issued the citations to the defendant, the time frame for “running the dog around” the vehicle without any suspicion or cause had expired. We turn now to the issue whether a suspicion independent of the reason for the stop justified the use of the dog.
(2) Independent factual basis justifying a canine sweep
In the present case, we discern no facts from the officer’s initial observations of an encounter with the defendant that suggest a reasonable suspicion that a drug crime was being committed. Cf. United States v. French, 974 F.2d 687, 690 (6th Cir. 1992) (explaining that, after truck was stopped for weaving, officers smelled odor of marijuana emanating from rear of truck and then had reasonable suspicion to investigate, reasonably waiting on a narcotics-detection dog that was 50 miles away at the time of the call), overruled in part on other grounds by United States v. Ferguson, 8 F.3d 385 (6th Cir. 1993). Rico, Officer Carter’s dog, was trained to detect the presence of drugs, not items such as bolt-cutters or stolen lawn mowers. Moreover, the officer’s initial concerns about the defendant’s being intoxicated apparently were quickly dispelled following the officer’s face-to-face encounter with the defendant.
Furthermore, no facts developed after the officer’s approach of the defendant’s vehicle that independently supported conducting a canine sweep of the vehicle. We know that Officer Carter testified that the defendant, who was still seated in his car, became “nervous” when the officer asked him for consent to search the vehicle; however, we reject this observation as a sole, independent basis for conducting the dog’s sweep. First, we note that Officer Carter admitted that, in his experience, people who were committing no offenses could become nervous when asked by a police officer for consent to search. We have no doubt that such is true. Second, this court has opined that a Terry-type frisk may not be merely based upon the “standardless” perception that the detained motorist was “nervous.” State v. Eric Berrios, No. W2005-01179-CCA-R9-CD, slip op. at 13 (Tenn. Crim. App., Jackson, Mar. 3, 2006), perm. app. granted (Tenn. 2006).
Consequently, we fail to discern any justification for delaying the detention for the purposes of using the drug dog, even if it was done “real quickly.” When the officer gave the defendant the citations, the legitimacy of the detention ended.
Comment: Some courts find the delay of one or two minutes for the dog sniff to be conducted “de minimus” under the Fourth Amendment. See the Eighth Circuit’s opinion in United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 648 (8th Cir. 1999). Tennessee has the proper approach. When dealing with police citizen interactions on the highway where everything turns on the officer’s credibility (they almost always get the benefit of the doubt) the Fourth Amendment should not be subject to parsing by “is this de minimus?” There is, of course the warrant execution issue of prejudice to the accused, and de minimus might and often does play a role there, but that is a part of the constitutional preference for a search warrant, and that changes the entire calculus. See my Comment with this prior post.
